Ana Pacheco,

Joel Buenventura, Esq.

Shane Carlson, Esq.

P.O. Box 30128 Acushnet, MA 02743

Administrative Magistrate:

Joan Freiman Fink, Esq.

SUMMARY OF DECISION

The Department of Public Health (DPH) has demonstrated that on November 13, 2008, the Respondent, Ana Pacheco, engaged in physical abuse of Resident J.V. by kicking him in retaliation for the Resident having scratched her. The Respondent also caused Resident J.V. psychological harm by threatening him. In accordance with federal regulations, a resident has the right to be free from abuse (42 CFR 483.13(b)). I therefore order that the Petitioner take appropriate action in accordance with this decision as required under the provisions of 42 USCS 1396r(g)(1)(c).

DECISION

Pursuant to 42 USC 1396r and 1395I - 3, G.L. c. 111, §§ 72F - 72L, and 105 CMR 155.000 et seq., the Petitioner, the Department of Public Health (DPH) filed a complaint investigation report with respect to the Respondent, Ana Pacheco, a licensed certified nurse assistant (CNA), following a finding of physical abuse of a patient under her care in a long term care facility (Exhibit 2). The Respondent requested an adjudicatory hearing on the issues raised in the report (Exhibit 3). A Pre-Hearing Conference was held in this matter on May 11, 2009. The hearing was originally scheduled to be held on August 7, 2009 but was continued at the request of the Respondent to August 31, 2009. On that date a full hearing on the merits of the complaint was held at the offices of the Division of Administrative Law Appeals, 98 North Washington Street, Boston, MA pursuant to G.L. c. 7, §4H. Various documents were entered into evidence at the hearing (Exhibits 1 -17). Two cassette tape recordings were made of the hearing.

The following employees of the Hathaway Manor Extended Care Home testified on behalf of the Petitioner: Eva Manchester, Director of Nursing; Lori Neese, RN, Christina Bowman, LPN and Nursing Supervisor; Guido Melo, LPN, and Rita Noon and Stephanie Smith, CNAs. The Respondent, Ana Pacheco, testified in her own behalf.

FINDINGS OF FACT

Based on the testimony and evidence provided, I make the following findings of fact:

1. The Respondent, Ana Pacheco, has been a Certified Nursing Assistant (CNA) for the past twenty-one years. Prior to November 13, 2008, she had not been the subject of any disciplinary action. (Testimony of the Respondent.)

2. For the three and one-half year period prior to November 13, 2008, the Respondent had been employed as a CNA at Hathaway Manor Extended Care Nursing Home (Hathaway Manor), a long-term care facility licensed by the Commonwealth of Massachusetts that accepts Medicare/Medicaid patients. (Testimony of the Respondent; testimony of Eva Manchester.)

3. As part of her orientation program at Hathaway Manor, the Respondent received training as to what constitutes abuse and neglect of patients. (Testimony of Eva Manchester.)

4. The Respondent was assigned to work the 3 p.m. to 11 p.m. shift caring for residents at Hathaway Manor including Resident J.V. (Testimony of the Respondent; testimony of Eva Manchester.)

5. Resident J.V. is an elderly man in his middle eighties who suffers from Alzheimer's disease, asthma, and pneumonia. Resident J.V. is very devoted to his wife who comes on a daily basis to visit him at Hathaway Manor. (Testimony of Eva Manchester; testimony of Guido Melo.)

6. On November 13, 2008, the Respondent was assigned to the 3 p.m. to 11 p.m. shift. One of her duties was to assist Resident J.V. with his activities of daily living. (Testimony of Respondent; testimony of Guido Melo, and Eva Manchester.)

7. At approximately 6 p.m. that evening, the Respondent was picking up and passing out dinner trays, when she encountered Resident J.V. seated in his wheelchair blocking her pathway. The Respondent asked Resident J.V. to move but he remained in the same place. (Testimony of the Respondent.)

8. After she asked him a second time to move and received no response, the Respondent grabbed Resident J.V. by the wheelchair and pushed him backwards. Resident J.V. was startled and reached out to balance himself and in so doing scratched the Respondent on her forearms. (Testimony of Guido Melo; testimony of Rita Noon.)

9. Using her right foot, the Respondent then kicked Resident J.V. on the left shin. (Testimony of Guido Melo; testimony of Rita Noon.)

10. At this juncture, the Respondent held out her arms and said to Resident J.V. "look what you did. I am going to tell your wife." (Testimony of Guido Melo; testimony of Rita Noon.)

11. Resident J.V. became extremely upset and agitated. He turned to the Respondent and said "I am sorry. Please don't tell my wife." He then reiterated his apology at least two more times to which the Respondent replied "apology not accepted." (Testimony of Guido Melo; testimony of Rita Noon.)

12. This incident was witnessed by Guido Melo, an LPN who was assigned to the 3 p.m. to 11 p.m. shift at Hathaway Manor. Mr. Guido also heard Resident J.V. repeatedly apologize to the Respondent as well as the Respondent's reply that she would not accept his apology. (Testimony of Guido Melo.)

13. Mr. Melo immediately conducted a physical evaluation of Resident J.V. and found no evidence of any injuries. (Testimony of Mr. Melo; Exhibit 9.)

14. On November 13 2008, Rita Noon, a CNA also assigned to the 3 p.m. to 11 p.m. shift at Hathaway Manor, was standing near a food cart at approximately 6 p.m. when she also witnessed the Respondent kick Resident J.V. Ms. Noon likewise heard the Respondent say to Resident J.V. that she was going to tell his wife about what he had done to which the Resident replied "I am sorry. I am sorry." (Testimony of Rita Noon.)

15. Ms. Noon immediately reported her observations to Guido Melo, who stated that he would report the incident. (Testimony of Rita Noon.)

16. Lori Neese, an R.N. and staff nurse at Hathaway Manor for almost twenty years, was standing next to the medication cart facing the nurses' station at approximately 6 p.m. on November 13, 2008 when she heard a wheelchair move and then a voice that she recognized as the Respondent's exclaim "look what he did to me." Ms. Neese then heard a voice that she recognized as Resident J.V. apologize repeatedly. Ms. Neese further heard the Respondent said that she would not accept the apology. (Testimony of Lori Neese.)

17. On the next day, November 14th, 2008, Guido Melo reported the incident to Christina Bowman, the nursing supervisor. Ms. Bowman immediately telephoned Eva Manchester, the Director of Nursing, and related the information that Mr. Melo had provided. (Testimony of Christina Bowman; testimony of Guido Melo.)

18. As soon as she concluded her telephone conversation with Ms. Bowman, Ms. Manchester began an investigation of this incident. She asked all the witnesses to complete written statements and interviewed Resident J.V. However, he could not recall any that had transpired the previous day. (Testimony of Eva Manchester; Exhibits 12-16.)

19. Ms. Manchester checked the Resident for any marks or wounds but did not find any evidence of injury. (Exhibit 9.)

20. Ms. Manchester then interviewed the Respondent and had her complete a written statement. (Testimony of Eva Manchester; Exhibit 17.)

21. Upon completion of her investigation, Ms. Manchester reported her findings to the Department of Public Health. (Testimony of Eva Manchester.)

22. On December 18, 2008, the DPH notified the Respondent that it had determined that the complaint against her for physical abuse of Resident J.V. had been found to be valid. (Exhibit 1.)

CONCLUSION AND ORDER

After reviewing the testimony and evidence presented in this matter, I conclude that the DPH has met its burden of proof to demonstrate by substantial evidence that Ana Pacheco engaged in the physical abuse of Resident J.V. on November 13, 2008. In accordance with federal regulations, a resident has the right to be free from abuse (42 CFR 483.13(b)). In accordance with state regulations, abuse is defined as physical contact with a patient that harms, or is likely to harm (105 CMR 155.005). A patient is determined to be abused if the physical contact results in pain or psychological harm (105 CMR 155.005 (1)(c). A resident is deemed to have suffered psychological injury if he/she is subjected to conduct that intimidates him or produces a noticeable level of mental or emotional distress (105 CMR CMR 155.055).

The basis of my conclusion in this case rests with my finding that the testimony of Guido Melo, Rita Noon, and Lori Neese was extremely credible. Mr. Melo and Ms. Noon testified that they had clear, unobstructed views of the room where the Respondent was standing in front of Resident J.V. and that they saw the Respondent push Resident J.V.'s wheelchair and then kick Resident J.V.'s left shin with her right foot. In addition, Mr. Melo and Ms. Noon heard the Respondent threaten Resident J.V. that she (Ms. Pacheco) would tell his wife that he had scratched her. Both Ms. Melo and Ms. Noon witnessed Resident J.V. become very upset and agitated and then repeatedly apologize to the Respondent. They also heard the Respondent reply "apology not accepted."

Ms. Neese, an R.N. and staff nurse, who was standing at the nurse station at the time of the incident, heard Resident J.V. apologize and the Respondent reply that she would not accept his apology. While Ms. Neese did not observe the Respondent kick the Resident, she did hear the anxiety in Resident J.V.'s voice when he offered multiple apologizes and further heard the Respondent curtly refuse his request.

I found this testimony to be convincing and compelling and accorded great weight to their account of the events that transpired. In Connor v. Connor, 77 A. 2d 697 (1951), the Pennsylvania court held that "opportunity to observe demeanor and appearance of witnesses in many instances becomes the very touchstone of credibility." See also School Committee of Wellesley v. Labor RelationsCommission, 376 Mass. 112, 120 (1978); New England Canteen Service Inc. v. Ashley, 372 Mass. 671 (1977).

Moreover, no evidence was introduced at the hearing to demonstrate that any of the three witnesses who observed the Respondent assaulting the Resident had any animus against Ms. Pacheco. Rather, all three witnesses testified that they had worked with the Respondent for a brief period of time prior to the incident in question and that their relationship with her was professional and non-problematic. Thus, I conclude that these witnesses, Guido Melo, Rita Noon, and Lori Neese, had no reason to fabricate their testimony or to dissemble.

At the hearing, the Respondent emphatically denied that she had struck Resident J.V. Rather, she argued that the Resident was combative and physical by nature and that on the day in question, when she had asked him two times to move his wheelchair, he became violent and scratched her forearms. However, she asserted that she did not kick him in retaliation for being scratched. In support of her assertion, the Respondent argued that Resident J.V. suffered no visible injury or bruises and as such, he was not abused by her.

I found the Respondent's testimony denying that she had physically abused Resident J.V. on the morning of November 13, 2008 not to be credible. Moreover, I did not credit the Respondent's argument that since Resident J.V. lacked demonstrable evidence of bruising or injury, he was not abused by her on the day in question. While the record reflects that Resident J.V. did not have any evidence of bruising, nonetheless I conclude that he suffered psychological harm by the Respondent's conduct. In accordance with 105 CMR 155.005 (1)(c), a patient is determined to be abused if the physical contact results in pain or psychological harm. A resident is deemed to have suffered psychological injury if he/she is subjected to conduct that intimidates him or produces a noticeable level of mental or emotional distress (105 CMR CMR 155.055). The three individuals who testified that they either observed the Respondent's interaction with Resident J.V. or heard Resident J.V.'s reaction to Ms. Pacheco all gave compelling and convincing testimony to the effect that Resident J.V. was extremely upset by the Respondent's threats to inform his wife and that his voice and demeanor demonstrated his ostensible state of agitation.

Based on the foregoing, I conclude that on the morning of November 13, 2008, the Respondent physically abused Resident J.V. Accordingly, I order that the Petitioner take appropriate action in accordance with this decision as required under the provisions of 42 USCS 1396r(g)(1)(c).

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